Pages

Monday, 30 September 2013

Sir George Arthur and transportation

Convict discipline was ‘the grand consideration to which every other in the Territory must be subservient.’ Arthur expected ‘unquestioning obedience,’ not only from convicts and convict officials, but also ‘established landholders and merchants.’[1] At least one secretary of state for the colonies, Lord Goderich, agreed with Arthur that a penal colony had to endure ‘the temporary sacrifice of many principles of law.’[2]This view antagonised many free settlers, especially in Hobart Town. They echoed their NSW counterparts by demanding a greater say in determining the colony’s future and the rights of freeborn Englishmen railing against what they saw as arbitrary and unjust government interference. Newspapers published in Hobart Town and Launceston were watchdogs of arbitrary government and outspoken proponents of the rights of the people. In 1826, the Colonial Times, which regularly referred to ‘free-born British subjects,’ wrote:

It must be recollected that we are in these Colonies, as far as our rights go, in England. By the privileges of our birth, the British Law is the only one to which we are subjected. Every immunity possessed by our brethren in England is also equally possessed by us de jure, notwithstanding many of them are withheld de facto. But when they are withheld, it is by the effect of the Law, specially enacted for that purpose.’[3]

For Englishmen, there was

...a natural feeling imbibed with our birth, cherished with our youth, and matured in our riper years which forbids our ever sinking to that abject state of being governed by absolute power or of becoming the slaves of despotism.’[4]

They were ‘not to be put off with the shadow of Liberty, after having once known the fullness of its enjoyments.’[5]

Support for measures such as trial by jury and representative government ‘increased as the free element in the population became proportionately greater’ and as it became clear that Chief Justice Pedder was subservient to Arthur.[6] In 1827, ‘the Gentry, Merchants, Landholders, Housekeepers, and other Free inhabitants of VDL’ petitioned the British Parliament for these two boons, which were ‘the pride and the birth-right’ and ‘the safeguard of every Briton.’[7] They declared that trial by jury was ‘essentially necessary to the preservation of our liberties’ because they lacked a representative assembly and therefore ‘no barrier between the People and the power of the Crown.’[8] Juries were ‘best calculated to protect man’s natural rights, and secure the pure administration of justice.’[9] In 1830, an ordinance empowered a judge to allow a jury in civil cases if desired by either party, but military juries were not removed for criminal cases until 1840.[10] A partially elected Legislative Council was not secured until 1850 and self-government until 1855.

In the 1820s and 1830s, the absence of trial by civilian jury and of representative government was not the only evidence that the rights of colonists were disregarded. To establish order and enforce convict discipline, Arthur created a powerful police force, comprised mainly of convicts, controlled by paid magistrates answerable to him. To pay for these magistrates, Arthur withdrew allowances from the gentlemen magistrates, thereby undermining their authority and status. Unlike the situation in NSW, lay magistrates had little say in police management and police control was not devolved but centralised.[11] The police infringed liberty in various ways, all detested by the citizens. The police arrested individuals on the flimsiest pretext, used excessive violence while so doing, acted as spies for the government, prosecuted offences that brought them part of a fine instead of pursuing thieves and were protected by the paid magistrates who supervised their duties.

Not unaware to their disadvantages or to criticisms of their methods, Arthur persevered with the appointment of convicts under sentence as policemen because of a shortage of suitable free settlers. In addition, the convicts’ desire to obtain a ticket of leave made them easier to control and, faced with Colonial Office directions to limit expenditure, he could pay them only a minimal wage, likely to attract only the most desperate free settlers. More important, the police achieved Arthur’s objectives. Describing them as ‘the pivot’ of his convict system, Arthur praised the police for providing him with unceasing surveillance and control over the convict population, for maintaining order, and for reducing crimes against person and property.[12] This paper subjects his police system, or ‘optical apparatus’ as one diarist called it, to close investigation and determines whether Arthur’s claims had validity.[13]

Hobart in 1823

Although Arthur was instructed by the British government to establish ‘a stricter surveillance and discipline’ over convicts, on his arrival in 1824 Arthur first had to deal with a number of threats to effective government.[14] Of particular concern was ‘a vast amount of crime amongst the Prisoners—Murders, constant Robberies, and other atrocious acts,’ perpetrated especially by bushrangers.[15] Given his ‘exceedingly limited’ military force, and his ‘inadequate means of punishing offences,’ Arthur was thankful that crime was not more widespread, but it was ‘truly distressing’ to the settlers on isolated farms. Arthur also predicted that the increasing ‘hostility’ of the Aborigines would stretch his limited resources, especially as ‘some strong measures’ would be required to remove them from the settled districts.[16] The administration of justice and supervision of convicts by inexperienced gentlemen magistrates was unsatisfactory. They awarded punishments without considering their ‘efficacy and propriety’ and without ‘uniformity’ and failed to create in the convicts

...such a reliance on the measures of Government towards them as alone can produce such an acquiescence of mind as is essential to the success of punishment.[17]

Arthur sought to portray VDL ‘as a terror in England rather than an allurement to vice’ by increasing penal discipline, preventing and punishing crime and keeping a record of the movements and behaviour of all convicts.[18] He believed his ‘first great improvement’ in criminal matters was to appoint a number of stipendiary magistrates.[19] With police magistrates already sitting in Hobart Town and Launceston, in 1827 Arthur appointed paid police magistrates, preferring men with military experience, at the smaller towns of New Norfolk, Oatlands, Richmond, Campbell Town, and Norfolk Plains, while military officers helped lay magistrates at Bothwell, Oyster Bay, and George Town.[20] These measures improved the behaviour of convicts and ‘the prevention and detection of crime generally.’ Masters were also keenly watched and brought to account if they mistreated their assigned convict servants.

According to Arthur, no government department was ‘more practically defective’ than the police.[21] His predecessors had failed to attract free men and all the petty constables were convicts, who were undoubtedly ‘in many cases the authors [rather] than detectors of crime.’ The constables were paid £10 per annum and received rations for themselves and their families and two suits of clothing.[22] As the chief district constables were landholders living on their own farms and spending most of their time on private interests, they neglected their police duties. Moreover, as they regarded their ‘emoluments’ as ‘trifling,’ Arthur did not ‘expect to derive much benefit from their services.’ Generally, the police were ‘ill-regulated and insufficient.’

[1] Korobacz, Victor, The Legislative Council of Van Diemen’s Land, 1825-1856: Some Aspects of the Development of a Colonial Legislature, master’s thesis, University of Tasmania, 1971, pp. 30, 53.

[8]The Colonist, 15 July 1834. Trial by jury was the most important question decided during Pedder’s first years in office. The Act empowering the Crown to establish Supreme Courts in NSW and VDL (4 Geo. IV, c. 96, s. 6) provided that actions at law should be triable by a jury of twelve men if both parties concurred in an application to the presiding judge for such jury. In NSW, Chief Justice Francis Forbes construed s.19 of the Act to require that free men should be tried by juries of their fellows, but limited it to Courts of Quarter Sessions. In contrast, Pedder ruled that the Act had introduced trial by jury in the Supreme Court only and did not apply in inferior courts. The controversy that arose in 1825 in Hobart on this question branded Pedder as a member of the ‘government party’.

[11] Archives Office of Tasmania (AOT), Police Department (POL) 319/1, Forster to Assistant Police Magistrate, Great Swan Port, 19 September 1835; for the tensions between stipendiary and lay magistrates in New South Wales, see ibid, Neal David, The Rule of Law in a Penal Colony: Law and Power in Early New South Wales, pp. 115-140 and Golder, Hilary, High and Responsible Office: A History of the New South Wales Magistracy, (Sydney University Press), 1991, chapter 2.

[21] AOT GO 33/1, Arthur to Bathurst, 3 July 1825; for a description of the police in 1820, see Superintendent Humphrey’s evidence to the Bigge Commission, HRA, Series III, Vol. 3, pp. 270-289; see also Jackman, A.K., Development of Police Administration in Tasmania, 1804-1960, diploma of public administration thesis, University of Tasmania, 1966, pp. 1-46